Freedom of Speech v. Civility

Does the speech of students warrant the same First Amendment protections enjoyed by adults?

February 11, 2016

Whether or not you’re a parent with kids in school, you’ve probably heard stories like these. A public-school student refuses to salute the flag on the grounds that her religion forbids it. A 15-year-old wears an armband to class to protest war. Another makes a sexually suggestive speech to support a friend’s student-government election campaign. At a school-sponsored off-campus event, a boy wears a T-shirt that seems to support drug use; student editors prepare to run stories in the school newspaper about the potentially controversial topics of teenage pregnancy and divorce; a girl mutters an insult under her breath that is overheard by a teacher who takes offense; friends text mean words about a classmate; a teenager posts angry thoughts about a teacher on Facebook. When school officials punish these different kinds of expression, what recourse do the students have? And what about their parents—where is the line between parental authority and a school’s jurisdiction? Does the speech of students—young, immature, impressionable, dependent—warrant the same First Amendment protections granted to adults?

Catherine Ross’s answer is a resounding yes. Ross, a professor at the George Washington University Law School, makes a compelling case in Lessons in Censorship for the importance of according students free speech not only as a constitutional right, but also as a vital democratic practice. “Schools have a unique opportunity and obligation to demonstrate the importance of fundamental constitutional values as an integral part of preparing students to participate in a robust, pluralist democracy,” she writes. “And the best way of transmitting values,” she stresses, is by “showing how the principles that govern us work in action.” She readily admits that striking the right balance between discipline and freedom is difficult. The waters of “free speech rights in public schools” are “unsettled” and “rife with rocky shoals and uncertain currents,” she notes, citing the opinion of the Second Circuit panel (which included Sonia Sotomayor) in Guiles v. Marineau, a 2006 case about a school banning a student’s T-shirt that criticized President George W. Bush as “a chicken-hawk president and…a former alcohol and cocaine abuser.” Despite the fragility and uneven application of constitutional principles, Ross thinks they make it possible to distinguish between genuinely insubordinate behavior and the expression of critical opinions, between unacceptable bullying and tolerable (albeit stinging) insults. The trouble, from her point of view, is that recent court rulings have muddied the waters that were once clear.

The high-water mark for clarity came in 1968 with the Supreme Court ruling in Tinker vs. Des Moines Independent Community School District. John Tinker was a 15-year-old public-school student who, along with his sister and a friend, planned to wear black armbands to school to protest the Vietnam War. When school officials learned of the planned protest, they forbade the wearing of armbands and threatened to suspend anyone who didn’t comply. Tinker was willing to meet with the board to explain the reasons for his action. The board rejected his offer; he defied the prohibition and was duly suspended. The case he brought against the disciplinary action eventually reached the Supreme Court, which ruled in Tinker’s favor. In a 7-to-2 decision, the majority noted that students “are ‘persons’ under our Constitution…. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.” The Court placed two limits on such expression. First, it must not “materially and substantially” interfere with school discipline; second, it “must not collide with the rights of other students to be secure and let alone.” Tinker, Ross explains, “provided a special framework for evaluating when schools violate students’ affirmative right to speak that balances the constitutional rights of individuals with society’s need for schools that can fulfill the many demands we place on them.”

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This “expansive” notion of students’ rights came from the Warren Court—the decision itself was written by Justice Abe Fortas—at the end of its long history of liberal interpretations of the Constitution. Ross points out that Fortas was an important proponent of the view that age “should not be used to deprive minors of the constitutional rights that protect adults.” Still, he “balanced children’s rights with competing societal goals by proposing specially tuned measures of constitutionality for institutions that serve the young.” For Ross, Tinker remains the best legal precedent for defining and reining in illegitimate school attempts to censor student speech.

As more conservative justices were appointed to the Supreme Court, Tinker was modified and school authorities given greater leeway to impose limits on student speech. In 1986, in Bethel School District v. Fraser, “lewd speech” was considered punishable in the educational interest of preserving “the shared values of a civilized social order.” Speech thought to be sexually suggestive, regardless of whether or not it posed “material and substantial” threats to school discipline, could now be censored by teachers and administrators. In 1988, the Court introduced, in Hazelwood School District v. Kuhlmeier, the idea that censorship could be imposed on any speech that might be construed as being “school-sponsored.” Articles published in a school newspaper, and even the classroom expression of controversial ideas, could be ruled out of order (and those who wrote or uttered them punished) if they were seen in any way to compromise the school’s reputation. In 2007, Morse v. Frederick added off-campus events to the list of so-called school-sponsored activities, and speech that was construed as being related (however indirectly) to illegal-drug use was denied constitutional protection as well.

Ross cites in rich detail a number of instances in which arbitrary judgments by school officials were justified in terms of these new precepts. In one case, a principal canceled a student drama workshop based on the experiences of Iraq War veterans because he didn’t want his school associated with its antiwar “point of view.” In another case, a teacher, fearing the school would be seen to endorse religion, removed from a Thanksgiving display a kindergartner’s poster in which she expressed thanks to Jesus. Ross’s trenchant analysis and sometimes chilling examples show teachers and principals cowed by the protests of parents or politicians who are anxious about security, eager to assert their authority in the face of outspoken—sometimes brash—student resistance, and jealous of their ability to impose rules and maintain order. School censorship can be arbitrary, inconsistent, and irrational, turning students’ expressions of opinion, their adolescent silliness, satire, or surliness, into serious—and punishable—infractions of what was defined as a school’s social order.

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For Ross, the alternative to censorship and punishment for speech that may cross some line between acceptability and outrageousness is to turn the use of such speech itself into “teachable moments.” She argues strongly that hate speech (racist, sexist, homophobic, or religious bullying) is also protected by the First Amendment. In most cases, she maintains, censorship of it is a violation of the speaker’s rights, however hurtful the words may be. The solution to hate speech lies elsewhere: Outside of school, in the world “children will grow up to live in, they will likely have to learn how to respond to speech they find objectionable and even unbearable without sinking to the offensive speaker’s level or slugging him. It may be best to learn to respond, whether by walking away or questioning, as a student under the watchful guidance of teachers rather than as an adult at a bar. Under the Speech Clause, the best remedy for nasty speech is more and better-quality speech that offers alternative visions and models civil responses.”

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But can schools and their teachers be counted on to provide this kind of response? Will parents whose children are the targets of cruel insults be satisfied with this approach? And what counts as a civil response? At a time when “civility” has become a code word for censoring political speech in universities and colleges, with some of us having warned that its invocation poses a threat to academic freedom [“The New Thought Police,” May 4, 2015], I was struck by Ross’s emphasis on civility as a solution to the problems posed by hate speech. In contrast to public elementary and secondary schools, where First Amendment rights are invoked to protect underage students from the arbitrary authority of those who have a legitimate rule over them, on college campuses it’s the faculty who increasingly need protection from the demands of students and, even more, the whims of administrators who, seeking to guarantee the comfort of their paying clients (students and their parents), impose all manner of unconstitutional regulations on teachers in the name of civility.

Ross does recognize that civility is not a self-evident concept, that it can be used to justify punishment in the name of a social or political status quo, and that it often conflates someone’s manner of speaking with the substance of the utterance. She argues—rightly, I think—that we need to distinguish between, on the one hand, the teaching of civility “through modeling civil language and behavior, lectures, lessons, and exhortation” and, on the other, “bringing the state’s coercive power to bear in punishing a manner of speech authorities conclude transgresses ‘shared values’ as school officials define them after the fact.” She is also fully sensitive to the need to forgive certain kinds of defiance and acting out typical of adolescence, such as using the word “fuck” in a written assignment.

Ross is adamant that students have the constitutional right to express their beliefs (within the limits of the Tinker standards) and that they cannot be prevented (by censorship or punishment) from uttering them. I share her defense of student free speech and her frustration at the often extreme violations of it that school officials routinely commit. Still, I wonder if “civility,” with its connotations of deference as well as politeness, its emphasis on conformity rather than independence, and its implication that we must tolerate those we disdain, is what we want to exhort school children to practice. Does freedom of expression depend on the absence of criticism? Will a student’s family and community take criticism of her ideas to be unacceptable “censorship”? To take a specific example, when the power of some religious groups resonates more acceptably with school officials than that of LGBT dissenters, what recourse, outside of the judicial realm, do the dissenters have? Can we depend on educators to protect what Ross refers to aptly as the fragile pluralism of our democracy?

If, instead of civility, the foundational values of democracy—equality, fairness, and respect for differences—were to be inculcated, teachers as well as students could address the sort of structural issues that are neglected when individual speech is identified as the source of a disagreement. Racist language, for instance, is anchored in assumptions shared by communities of people; it assumes the implicit support of these communities. The reply to “nasty speech” needs to expose this larger context in all its dimensions. A democratic pedagogy must go beyond a consideration of students’ individual rights. It requires an awareness not only of the expressive power of ideas, but of the larger historical, social, and political contexts within which ideas are formed and take effect. This critical pedagogy is not neutral in its outlook; nor is it totalitarian. Its ethos is not that anything goes, but that ideas have consequences that need to be subjected to critical interrogation—not in the interests of conformity or normative regulation, but in order to guarantee the very future of democracy.